Linh Le v Bjjlte Pty Ltd T/A Temporary Fence Hire
[2021] FWC 2870
•19 MAY 2021
| [2021] FWC 2870 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Linh Le
v
BJJLTE Pty Ltd T/A Temporary Fence Hire
(U2020/12497)
DEPUTY PRESIDENT LAKE | BRISBANE, 19 MAY 2021 |
Application for an unfair dismissal remedy – whether the Applicant resigned – Applicant found to have resigned – application dismissed
Introduction
[1] On 27 November 2019, Mr Linh Le (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his termination from BJJLTE Pty Ltd T/A Temporary Fence Hire (the Respondent) on 31 August 2020.
[2] The Respondent objected to the application on the basis that the Applicant resigned and that the employer was a small business employer and had complied with the Small Business Fair Dismissal Code.
[3] The matter was listed, dates set down for submissions on the jurisdictional objection and a hearing was held on 18 February 2021. Neither party was represented.
EVIDENCE AND SUBMISSIONS
Applicant’s Evidence and Submissions
[4] The Applicant provided a witness statement in these proceedings. He stated that he commenced full time employment with the Respondent on 14 May 2007 as a Welder Class B, after replying to an advertisement in a local paper. Initially, he had started out welding and fabricating fences, but during the course of his employment, he progressed to a multitude of other welding duties.
[5] The Applicated stated that he had smoked during the 13 years he had been employed by the Respondent and had done so onsite. He continued to smoke in his own work bay even after the site changed several years ago to smoking being allowed in ‘designated areas only’ (of which his work bay was not one). He had not received any warnings about this conduct until 12 August 2020.
[6] The Applicant submitted that he has always used a forklift during his employment with the Respondent, probably daily, throughout the 13 years. He noted that some forklifts require seatbelts to turn on, while others do not.
[7] It was noted by the Applicant that he had previously asked for information surrounding a redundancy, after he was forced to take four weeks annual leave, around the middle of March to the middle of April 2020. When he returned from his annual leave, the Applicant thought it seemed that other employees had been given redundancies but then re-hired as casuals.
[8] The Applicant said he asked Owen Thomas (Owen) about redundancies as he was unsure if this was an option for him. Aside from Owen saying, “you’re going nowhere” as a response, the Applicant submitted that he had not received any formal response to this request for information, either in writing or verbally.
Incident on 31 August 2020
[9] It was the Applicant’s evidence that on 31 August 2020, he was on the forklift when the Respondent’s Group HR & Safety Manager, Anissa Siddell, asked why he was not wearing a seatbelt. The Applicant allegedly replied by asking if he had to, before putting the seatbelt on.
[10] About 20 or 30 minutes later, the Applicant noted that the Second in Charge, Brad Warner, told the Applicant to come with him and they went to Ms Siddell’s office where he received a warning for failing to wear a seatbelt.
[11] The Applicant further submitted that he requested to see Stephen Sheehan and asked him why he received a warning for failing to wear a seat belt when he had been driving medium trucks without a licence and did not have to wear a seatbelt. Mr Sheehan allegedly said this was due to driving on the premises.
[12] The Applicant said that he saw Mr Warner and told him he did not feel well and was going to take the rest of the day off. Mr Warner allegedly asked the Applicant what was wrong, to which the Applicant replied, “I don’t feel really well and I think people picking on me.”
[13] It was the Applicant’s evidence that Mr Warner said to him that if he wanted to leave he did not have to give a month’s notice and could be paid out.
[14] The Applicant said subsequently his leave balances were worked out and he was given a piece of paper which he took home.
Alleged resignation
[15] The Applicant submitted that he did not resign, but rather that he was fired.
[16] It was the Applicant’s evidence that on 31 August 2020, he went home feeling unwell and had discussed this with Mr Warner, and the Director, Brett Thomas (Brett).
[17] The next day, on 1 September 2020, the Applicant submitted that he contacted the Yard Supervisor, Alex Fry, to advise that he would not be in that day. The Applicant subsequently obtained a medical certificate to cover the days off and awaited a call from Brett.
[18] The Applicant noted that he received an email from Ms Siddell, on 3 September 2020 stating that the company had accepted his resignation and that his entitlements had been paid out. This letter read:
“RE: Acceptance of Resignation
The purpose of this letter is to formally acknowledge that we have accepted your resignation as per your conversation with Brett THOMAS - Director on the 31'st August 2020.
I confirm that your final date of employment with B.J.J.T.E. Pty Ltd will be 28th September 2020. In lieu of your service with the company we will waiver the 4 week notice period and pay you accordingly for that notice period.
Your outstanding accrued entitlements will be processed the paid this pay period. If require
separation certificate this can be arranged for you.
On behalf of Executive team I thank you for your valuable contribution during your employment with us.
I wish to take this opportunity to wish you the best in your future endeavours.”
[19] The Applicant further submits that he replied to this email as follows:
“Hi Anissa
I am just replying on behalf of my husband Linh Le as he has requested.
To just confirm Linh has not resigned from his position at TFH/BJJLTE Pty Ltd.
Please request Brett give us a call on Linh's mobile to clear up any misunderstanding.”
[20] The Applicant submitted that his employment contract stated that he is to give the employer one month notice in writing if terminating employment with the company.
[21] It was the Applicant’s evidence that Brett rang him and the Applicant told him that he did not resign, but Brett insisted he did.
[22] The Applicant said that the phone call ended with him telling Brett he was going to Fair Work and Brett subsequently hung up the phone.
Evidence of Barbara Le
[23] Ms Barbara Le, the Applicant’s wife, gave a witness statement in these proceedings. Her recount of the events of 31 August 2021 are largely based on information provided to her by the Applicant. However, Ms Le then provided evidence of her conversations with the Respondent on 1 September 2020 in respect of the Applicant’s absence from work. She said that she told Alex Fry that the Applicant would not be at work that day as he was still upset and feeling stressed about the prior day’s events and that he was going to see a doctor and he would provide a medical certificate.
[24] Ms Le stated that she accompanied her husband to see the doctor. During the consultation, Ms Le states that the Applicant told the doctor he wanted to speak to his boss to try and sort it out – “it” being him feeling upset, stressed, anxious about the event’s at work. Ms Le states the doctor provided a certificate which stated that the Applicant was “unfit for work” temporarily, thus giving him a few days off.
[25] Following that appointment, Ms Le phoned Owen on the Applicant’s behalf because he was not up to speaking with him. Owen was driving and told her that Brett would call her back. Ms Le said there was no reference made to the Applicant having resigned.
[26] On 3 September 2020, Ms Le discovered that the Applicant had been paid out his annual and long service leave while she was doing the couple’s weekly banking.
[27] Ms Le then saw an email from Ms Siddell, with an attachment dated 1 September 2020, which stated that the Applicant’s resignation had been accepted. When she spoke with her husband about this and he told her he had not resigned. Ms Le sent Ms Siddell an email stating that the Applicant had not resigned and asked that Brett call the Applicant so as to remedy any misunderstanding.
[28] Ms Le said that Brett called the Applicant at or around 10.56am. The phone was on loudspeaker, so she and the Applicant could participate in the conversation. Ms Le told Brett about the stress and pressure he had been feeling and how he did not want any further complications relating to a medical condition he had, which he had been advised required him to avoid stress. The Applicant said he had not resigned.
[29] Brett stated that the Applicant had told him that he had to give it (that is, his employment) away and that he was not happy working at the Respondent. He said the Applicant had reported feeling pressure in his head and Brett had acknowledged that health was more important than anything else. On the phone, the Applicant refuted that he had told Brett about the pressure in his head and said that he was not happy that people were picking on him and that he had worked for the company for 12 years without any problems. Brett said that the rules applied to everyone – that is, no smoking and no driving without a seatbelt – and that he had accepted the Applicant’s resignation, which was why the Applicant had been paid his entitlements straight away.
[30] The Applicant told Brett he had taken his words the wrong way and that he had merely sought the rest of the day off. He had taken the piece of paper detailing his entitlements to have a look at but maintained he had not resigned.
[31] Ms Le’s statement also sets out several reasons why, in her view, her husband would not have resigned. These include because she had been made redundant in February 2020 so the Applicant was supporting two mortgages, it would not make sense to leave solid employment during the pandemic, no resignation was communicated in writing and given the Applicant was nearing retirement age, it would not make sense to change jobs now. She also noted that the Applicant had left his tools at the worksite, which he would not have done had he resigned.
Respondent’s Evidence and Submissions
Incident on 31 August 2020
[32] At around 10:50am on 31 August 2020, the Applicant was observed by the HR & Safety Manager operating a forklift without a seatbelt. She had cause to be in the area as Colin Munson was assisting her with a Job Task Analysis for Fabrication.
The HR & Safety Manager immediately reported this. After analysing the Training Matrix, it was confirmed that the Applicant was not the holder of a current forklift license. The Applicant was asked to produce a copy of his license (which he initially stated he held) and then admitted the license had expired and was at home.
[33] It was the Respondent’s evidence that the Applicant was given a written warning (his second within three weeks) due to being observed on a forklift without wearing a seatbelt and without being a holder of a current licence. The Respondent submitted that the warning process, involved the following interaction:
“He then looked at Ms SIDDELL and said he felt he was being picked on because he is getting the warning for not wearing a seat belt and had previously received a warning for smoking on a non-smoking site
Ms SIDDELL said the "the rules are the same for everyone, no-one can smoke on site"
An employee Michail NASARENKO walked into the office to see Ms SIDDELL - he apologised for interrupting and was about to walk out when Ms SIDDELL stopped him
She said to Michail "Michail, what is the rules about wearing a seat belt on the forklift"
He replied with "/ was, I was wearing one"
She smiled and said "yes, I know Michail, I was asking you to clarify the rules". She then excused him and he left.
Michail had previously been given a warning for smoking on site and was also disciplined for not having his forklift licence on his person whilst operating a licence. As a result, he was stood down for 3 months off the forklift.
…
The Applicant said he wasn't signing the Warning and that he was going to quit. He then walked out of the meeting.”
[34] The Applicant allegedly walked out of the meeting at which he had been given the warning, saying he was quitting. He subsequently, walked back to his area, ate lunch, had a smoke, collected his bags and left.
[35] At some point between the warning meeting and the Applicant leaving the premises, the Respondent noted that on the Applicant’s way out, he saw Brett, the Respondent’s Director. They spoke for almost eight minutes and Brett asked the payroll manager for the Applicant’s pay-out figure as he had resigned. The Applicant was given a copy of his pay-out figures and then left the workplace.
[36] Prior to this event, the Respondent noted that the Applicant had asked the business on numerous occasions during the past six months for a redundancy. These requests were rejected.
The Resignation
[37] During the warning on 31 August, Ms Siddell noted that the Applicant said he was fed up with the place and had enough. The Applicant also allegedly said that the place had changed and there were too many rules and that he did not enjoy coming to work anymore.
[38] Ms Siddell further submitted that the Applicant stated several times that he wanted to quit and that he said he did not want to be there anymore.
[39] At the conclusion of the meeting, the Applicant refused to sign the warning and said he was going to quit and walked out of the meeting.
[40] Ms Siddell said that at approximately 12:40pm, Brett came into her office and advised that the Applicant had resigned.
[41] It was further stated by Ms Siddell that the Applicant resigned to four different people verbally before walking off site. This being Mr Sheehan, Mr Warner, Mr Thomas and herself.
Legislative Framework
[42] Section 386 of the Act relevantly provides:
“Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[43] Section 386 of the Act has created two clear grounds on which a claim could potentially proceed.1 In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, the Full Bench expanded on the content of the two limbs:
[47]Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable (sic) result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
[44] The case of Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 is a foundational case in determining what is classified as a ‘forced resignation’. There it was stated:2
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.” (emphasis added)
[45] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, the Full Bench helpfully expounded on Mohazab in the following terms:
“[31] The approach taken in Mohazab that a termination of employment at the initiative of the employer could be constituted by a “forced” resignation was followed in numerous decisions made in respect of the various iterations of the termination of employment scheme in the Workplace Relations Act 1996. These decisions most notably include Rheinberger v Huxley Marketing Pty Limited and O’Meara v Stanley Works Pty Ltd. In the former decision, the Industrial Relations Court (Moore J) referred to Mohazab and said:
“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct.”
[32] In the latter decision a Full Bench of the Australian Industrial Relations Commission said:
“[23] ... It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”
[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.” (emphasis added)
[46] The onus of proving that a resignation was not voluntary and formed a constructive dismissal lies with the employee who alleges that constructive dismissal occurred.3 Case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one, which must be “closely drawn and rigorously observed.”4
[47] Further, it has been found that where an employee is subject to disciplinary procedures, this is not in itself sufficient to demonstrate that a resignation was forced by actions of the employer.5 In Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555, Mr Bell resigned prior to the conclusion of a formal determination regarding his falsely signing of timesheets. He contented in his resignation letter that his resignation was “due to circumstances beyond his control”. Further, there was reliable evidence that the employer stated that “it’s serious business and [Mr Bell’s] employment may be terminated.” The Full Bench concluded that “this was no more than mere fact, acknowledged by Mr Bell on his own appreciation of the position.”6 A statement that an employee may be terminated as a result of an investigative process is not, on its own, determinative of whether a constructive dismissal has occurred.
[48] There is no evidence before the Commission that the Respondent engaged in any conduct that satisfies the requisite element of compulsion. In my view, it would be a perverse outcome to consider that a disciplinary warning following a safety breach as imposing forcibly upon the Applicant that he must resign. The contention from the Applicant is that there was never an intention to leave, merely that he felt unwell and left that day. He then went to the doctor the next day and had a certificate issued that covered him for a few days. His wife made some enquiries but the business had taken the view that the Applicant had resigned entirely of his own volition.
[49] In Ashton v Consumer Action Law Centre, Commissioner Bisset stated:
“[59] It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.
[60] That, following the grievance outcome and the delivery to him of a letter seeking his response on performance matters, Ashton felt he had no choice but to resign does not mean that the actions of the Respondent were intended to force that resignation.
[61] In this matter, viewed objectively, the actions of the employer in investigating Mr Ashton’s grievance and/or in instigating higher level supervisory requirements and/or in providing him with a letter outlining specific areas of concern with his performance were not designed to force Ashton to resign.
[62] I find that Mr Ashton was not forced to resign because of conduct, or a course of conduct, engaged in by his employer.” 7
Consideration
[50] The Applicant asserts that at no stage did he indicate that he was resigning, his argument is simply that he did not feel well and left the workplace after telling a number of people that he was not feeling well. Further, during his departure from the workplace and following a conversation with a senior manager, he was given his entitlement estimate by the pay office. He did not manage to contact the employer the next day and, when his entitlements were paid out, he did not return them. His wife gave evidence to support the Applicant’s claim that he had not quit his job.
[51] This case turns on the evidence given by each of the witnesses. In cases of this nature, it is possible that reasonable minds may differ. However, for the reasons set out below, I am satisfied that the Applicant resigned his employment and, therefore, was not dismissed.
[52] I have come to that conclusion based on several factors. I found the Respondent’s witnesses to be credible. Each of them gave evidence that the Applicant clearly communicated he was quitting, though the reason for doing so varied from because of the warning that he had received or because he no longer enjoyed working for the Respondent as there were too many rules. I also found it particularly significant that the process of the Applicant leaving the premises occurred over a period of more than an hour and involved him speaking with four senior members of the Respondent who each subsequently gave evidence that the Applicant had resigned. The fact that each of those individuals interpreted the Applicant’s words and conduct as a resignation rather than an indication that he was merely leaving for the day, suggests that the Applicant did in fact resign. That is supported by the fact that between receiving the warning and leaving the site, the Applicant had time to walk to his area, eat his lunch, smoke, and collect his things. That passage of time does not suggest a heat of the moment resignation.
[53] Particularly poignant was the fact that one of the individuals to which the Applicant spoke was the second in charge onsite. It was not the case, for example, that the Applicant was simply venting to a fellow colleague. More significant still, was the fact that the Applicant stayed to receive the figures relating to his entitlements upon termination and then left.
[54] It seems that the Applicant has now sought to re-characterise the events of that afternoon and attempted to present the circumstances in a different light. However, these facts paint a clear picture in my mind of an employee who had the intention to leave and acted upon it. They do not suggest to me, an employee who was simply angry or frustrated by the day’s events, announced he was leaving for the day and that was misunderstood.
[55] Therefore, I find that Applicant resigned and, accordingly, there was no dismissal at the behest of the Respondent. Consequently, the unfair dismissal jurisdiction is not enlivened. I need not consider the remaining questions.
[56] I order that the matter be dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR729985>
1 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, [47].
2 Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200, 205-206 (Mohazab).
3 Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at [30].
4 Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
5 See for example Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.
6 Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555, [38].
7 [2010] FWA 9356.
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